Food imitating products: risks need to be likely, not certain - Get Fresh Cosmetics (Case C-122/21)

by Marta Dzedyshko

We do not often discuss Directive 87/357/EEC on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers (Directive on food imitating products). The main purpose of this Directive was to ensure that children who most easily could mistake various consumer products for foodstuffs if they would resemble them, are protected from risks of suffocation, poisoning etc. 

Recently, the Lithuanian consumer protection authority found it difficult to apply the rules of this instrument and the matter was referred to the CJEU for elaboration (C-122/21). Get Fresh Cosmetics made bath bombs, which could be mistaken for food. However, when the Lithuanian consumer protection authority claimed that they were not compliant with Directive 87/357/EEC, the company demanded proof of not only possible consumers' confusion as to the character of the product but also of dangers that such confusion could bring about. For example, lab evidence as to whether the products could be broken and posed danger of poisoning when placed in mouth, sucked on or swallowed (para 19). This risk was presumed by the authority (para 20) on the basis of the fact that 'cosmetic products are not intended for consumption'.

The question was then what burden of proof this Directive required as to the causal link between the product's characteristics and risks caused by a product that could be mistaken for foodstuff by consumers. Would the consumer protection authority need to collect and present 'objective and substantiated data' of a hazardous nature of the product at stake?

The CJEU does not interpret Directive 87/357/EEC as requiring such a far-reaching burden of proof, whilst simultaneously also not seeing in it a presumption of a hazardous nature of products that appear to be other than they are (para 29, 35). Thus, the Lithuanian consumer protection authority has to substantiate why they think a given product could bring about risks to consumers by resembling foodstuff (paras 40-41). It can, however, do this by other evidentiary means than presenting 'objective and substantiated data', thus instead of certainty of the risk arising it is enough to prove its likelihood (para 45). The assessment should focus on objective characteristics of the product, e.g. materials and composition (para 42), vulnerability of targeted consumers (para 43)